Decoding the 2G Judgment: Show Me the Illegal Gratification!

The whole 2G scam was supposed to have taken place because of bribes paid to A Raja. But where was the evidence?

What happened to the corruption charges?

Given the mammoth size of the main 2G judgment (1,552 pages), it was obviously going to be difficult to analyse it in a huge amount of detail in the immediate aftermath of the judgment. Which meant that most reports and analysis focused on the explosive comments of special CBI judge OP Saini towards the end of the judgment, where he criticised the overarching failings of the prosecution.

With some more time, we’ve been able to more comprehensively review the judgment – you can read a breakdown of why the CBI’s arguments on a pre-existing conspiracy broke down here, and why all the major arguments about auctioning, first-come first-served and all the other alleged policy subversions by A Raja collapsed, here.

But what about the big claim in this case, the allegation that tied all the other accusations of breach of trust, abuse of process, cheating, and even money laundering together – that Raja, Kanimozhi and Sharad Kumar received a bribe of Rs 200 crore “as a reward for grant of licences and allocation of spectrum to STPL”?

The Alleged Money Trail

Understandably, the prosecution didn’t try to argue that bags of cash worth Rs. 200 crore were handed over to Raja and co. by STPL (Swan Telecom Pvt Ltd), one of the companies allegedly favoured by the spectrum allocation process.

Instead, it was argued that they transferred the money via a circuitous route to Kalaignar TV (P) Limited, a TV company owned by the DMK party, of which A Raja was a party. Kanimozhi (also of the DMK) and Sharad Kumar were directors of Kalaignar – this was the connection relied on to say that Raja received the money in return for the favour of granting licences and allocating spectrum to STPL.

The difficulty for the prosecution was that there was no direct payment from STPL to Kalaignar that obviously seemed a sham. The money was transferred by companies related to STPL to Kalaignar in the form of loans, and was routed in the following way:

1. Dynamix Realty to Kusegaon Fruits and Vegetables – as a loan
2. Kusegaon Fruits and Vegetables to Cineyug Films (P) Limited – as an equity participation
3. Cineyug Films (P) Limited to Kalaignar TV (P) Limited – as a loan

The CBI argued that all these transactions were bogus, and were only meant to get the money to Raja and co. They pointed to the speed with which parts of the transaction took place, as well as discrepancies in some of the documentation, as circumstantial evidence to back up this allegation.

On this basis, it was alleged that Raja had committed the following offences under the Prevention of Corruption Act 1988:

• Accepting illegal gratification for doing something in his official capacity (section 7);
• Committing criminal misconduct by obtaining money for himself and others by corrupt or illegal means (section 13(1)(d)).

Why These Charges Failed

While the CBI made forceful arguments “at the bar” ie when speaking orally to judge Saini, and in final arguments, the judge found that they had failed to back this up with any concrete evidence.

In what was a running feature of this case, not only did the defence witnesses attest that the transactions were genuine, but so did several of the prosecution’s own witnesses, from all four companies. The CBI failed to use cross-examinations or re-examinations to contradict these witnesses, and didn’t even object to what they said on record. As the judge puts it,

In the entire prosecution evidence it was nowhere suggested to any witness that the transfer of Rs. 200 crore was an illegal gratification and that the four entities had concealed its identity to give it a colour of regular business transaction.

The CBI had a huge advantage in the case in that Raja agreed to be give his testimony and be cross- examined in court – something which rarely happens in these kinds of cases. Even this opportunity went begging, because when the CBI got the chance to question him on the stand, they didn’t even try to contradict him when he denied asking for or receiving any illegal gratification, or when he argued that he didn’t have any personal role to play in the transactions.

If any witness in a case says something which goes against what the prosecution is trying to say, and the prosecution don’t contradict the witness or declare them hostile, the accused person can rely on that witness’ testimony to support their defence. This is precisely what Raja was able to do in the case thanks to the mistakes of the CBI.

Saini also took up all the other circumstantial evidence provided by the CBI, but once again, this wasn’t persuasive enough to build the case on its own. The discrepancies pointed out in the documents didn’t affect their legality, and again, weren’t brought up during examination of the witnesses who had actually drafted them. The fact that the money was refunded by Kalaignar after Raja was questioned by the CBI was also never put to any of the witnesses and more importantly, could not be tied to Raja since he had nothing to do with Kalaignar TV personally.

In the end, all the charges under the Prevention of Corruption Act failed because the CBI couldn’t prove beyond reasonable doubt that Raja had demanded any money in return for granting the licences, or that he had even received any such payments.

What are the Chances of a Successful Appeal?

The failure of the illegal gratification charges also affected the charges of money laundering. Raja had been accused of laundering the proceeds of a crime (the acceptance of illegal gratification) under the Prevention of Money Laundering Act 2002. Since no crime was proved to be committed, no proceeds of crime could be said to exist, and so the money laundering charges also failed.

On reviewing Judge Saini’s arguments, if you take off the legal lenses, it can seem a little disappointing. The circumstantial evidence in the case does make the whole series of transactions look quite fishy, and the judge never entirely discounts this circumstantial evidence. As a result, his constant refrain, that the witnesses should have been asked about those issues, does seem a bit nitpicky.

At the same time, the law has to be followed. Circumstantial evidence can prove a case, but it has to leave no other way to explain what happened. In this case, however, the witness testimony from both defence and prosecution witnesses time and time again says that all the transactions were genuine and above-board, so this becomes direct evidence against what the prosecution is saying.

Having said that, it may be possible for the CBI to try and say that even though the witnesses said the transactions were genuine, the other evidence clearly shows otherwise. If they can present their other evidence in a more convincing way, they might find some joy in the High Court. The biggest stumbling block, however, to using this to overturn the acquittal, lies in the fact that they don’t really have enough of a connection between Raja and Kalaignar TV.

So That’s It, Then?

We can’t say much more till the case is actually heard on appeal. Apart from taking apart the CBI case on each issue, Judge Saini also criticized the prosecution for orchestrating the chargesheet and blowing everything out of proportion because of the media attention. He also ensured that every time he accepted a defence argument, he gave clear reasoning for doing so.

The only issue on which he remotely ruled against the defence was their argument that proper sanction hadn’t been received to prosecute RK Chandolia, one of Raja’s bureaucrats – and that too didn’t matter in the end, because none of the charges were proved.

It’s clear then that the CBI need a better plan for the appeal, and perhaps a different set of lawyers. The special public prosecutor Anand Grover is a senior advocate of some repute, so it was surprising that so many flaws were found in the way he dealt with the case. Maybe it was just that he had been associated so long with the case he didn’t realise where the prosecution was going wrong – and a fresh set of eyes, maybe from someone like Harish Salve, would help.

Till then, however, Raja and the others have won this round.

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